Millhouse and Husserl
[2019] FamCA 798
•31 October 2019
FAMILY COURT OF AUSTRALIA
| MILLHOUSE & HUSSERL | [2019] FamCA 798 |
| FAMILY LAW – CHILDREN – Best interests of the child – Where the father perpetrated family violence against the mother – Where concerns of neglect in the mother’s care –Where allegations that the mother has exposed the children to a risk of harm of sexual abuse – Where the father did not ultimately contend that the children are at risk of sexual abuse in the care of the mother – Where concerns in relation to the father’s drug and alcohol misuse – Where it is found that there is no unacceptable risk of harm associated with abuse or neglect in the either parties’ care – Orders made largely as sought by the mother – Where the orders made are the least detrimental to the children. |
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| G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 M & M (1988) 166 CLR 69; [1988] HCA 68 |
| APPLICANT: | Ms Millhouse |
| RESPONDENT: | Mr Husserl |
| INTERVENOR: | Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 3726 | of | 2017 |
| DATE DELIVERED: | 31 October 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 11 - 15 February 2019 and 10 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lawrence |
| SOLICITOR FOR THE APPLICANT: | Hills Family Law Centre |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE RESPONDENT: | Bowral Legal |
| COUNSEL FOR THE INTERVENOR: | Ms Mahony |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor's Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That all prior parenting orders be discharged.
Parental Responsibility
That the mother have sole parental responsibility for the care, welfare and development of B, born … 2011 and C, born … 2012 (“the children”).
Living Arrangements
That the children live with the mother.
That the children spend time with the father commencing on Friday 8 November 2019 as follows:
(a) every alternative weekend from the conclusion of school on Friday (or 3.00pm if a non-school day) until 5.00pm Sunday; and
(b) at all other times as may be agreed between the parents.
School Holidays
Unless otherwise agreed between the parents, the children will live with each parent on an equal shared care basis as follows:
(a) during the April, June/July and September/October school holiday periods:
(i) with the mother for the first half in each even numbered year and the second half in each odd-numbered year; and
(ii) with the father for the second half in each even numbered-year in the first half in each odd-numbered year.
(b) During the December/January school holiday period:
(i) with the mother for the first half in each even-numbered year and the second half in each odd-numbered year; and
(ii) with the father for the second half in each even-numbered year in the first half in each odd-numbered year.
For the purposes of order 5, the school holidays shall be deemed to commence at the conclusion of school on the last day of each term, conclude at the commencement of school on the first day of the following term and reach the halfway point at 5.00pm on the middle day of the holiday period (or 5.00pm on the first day of the second half in the event the holidays have an even number of days).
Special Occasions
That except as otherwise provided by these orders, unless they agree otherwise, the parents will take appropriate measures to ensure the children live with each parent as follows:
(a) with the mother on Mother’s Day and the father on Father’s Day each year from 6.00pm on the Saturday immediately preceding Mother’s Day or Father’s Day until 5.00pm on Mother’s Day or Father’s Day;
(b) at Christmas, unless the parents agree otherwise:
(i) in each even-numbered year, the children will spend time with the mother from 5.00pm on 24 December until 2.30pm on 25 December and with the father from 2.30pm on 25 December until 5.00pm on 26 December; and
(ii) in each odd-numbered year, the children will spend time with the father from 5.00pm on 24 December until 2.30pm on 25 December and with the mother from 2.30pm on 25 December until 5.00pm on 26 December.
Changeovers
All changeovers will occur at the children’s school, unless on a non-school day, in which event the changeovers will occur at J Town Railway Station, unless otherwise agreed between the parties.
Telephone/ Electronic Communication
The parents will facilitate and encourage private telephone, text message, FaceTime, Skype or other electronic means of communications between the children and the other parent as far as is practicable and at all reasonable times.
Communications and Notifications
The parents will communicate with each other in relation to matters concerning the children via text message and email, noting that any request for a response will be provided by the other parent within 24 hours of their receipt of the communication.
In the event of an emergency, the parents will communicate with each other via telephone.
The parents will do all such acts and things and sign all authorities necessary to authorise the children’s schools to provide each parent with the particulars of the children’s progress, including but not limited to the provision of reports, notices of school photographs, open days, sporting events, circulars sent out to parents, notices of excursions and other activities and/or functions.
The parents are at liberty to attend at the children’s school(s) for the purposes of any function or activity normally attended by parents
The parents will do all such acts and things and sign all authorities necessary to authorise any medical practitioner, specialist, orthodontist, and/or any other health professional so that the other parent can obtain particulars in relation to any of the children’s health.
Each parent will keep the other informed of their current mobile telephone number and email address and advise the other parent of any changes to those details within 24 hours of such change
Each parent will notify the other of any medical emergency, illness or injury the children suffer while in that parent’s care that the parent considers serious enough to require treatment by a health professional and will authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
During the time the children are with either parent, that parent will:
(a) respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) speak of the other parent respectfully
Restraints
Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
The parties are restrained by injunction from physically disciplining the children.
Both parents will refrain from:
(a) exposing the children to any domestic and/or family violence;
(b) discussing these proceedings or the contents of any documents filed in or relied upon for these proceedings to, with or in the presence or hearing of the children, and from permitting any other person to do so;
(c) using speakerphone to listen to, or otherwise record any conversations between the children and the other parent;
(d) using prohibited drugs during or for 12 hours before spending time with the children;
(e) consuming alcohol in excess of the legal blood alcohol limit for the operation of a motor vehicle whilst the children are in their care; and
(f) transporting the children in a motor vehicle without an age-appropriate child restraint/car seat
The parties are restrained under section 68B of the Family Law Act 1975 (Cth) from allowing the children B born … 2011 and C born … 2012 to come into contact with Mr F and will use their best endeavours to immediately remove the children from his presence should they come into contact with him.
Other
The mother is to continue to ensure that the children are treated by the paediatrician previously consulted from time to time as recommended by the paediatrician.
When speaking with the children, the father will refer to the mother as “Mum” and encourage the children to call the mother “Mum”.
Dispute Resolution
The parents agree that, in the event a dispute arises in relation to any aspect of these orders, they will attempt to resolve the dispute in the first instance by mediation.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Millhouse & Husserl has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3726 of 2017
| Ms Millhouse |
Applicant
And
| Mr Husserl |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern B, a little girl of eight and her seven year old brother C (“the children”).
The children’s parents, Ms Millhouse (“the mother”) and Mr Husserl (“the father”) had a brief and tumultuous relationship and have faced many challenges in the raising of the children.
Since separation in 2013 the children for some time lived with the mother and spent reasonably regular time with the father. In mid-2017 the father unilaterally took B into his care on the basis that he believed that the mother’s then partner was sexually and physically abusing her. The father later assumed the care of C on the same basis.
The father seeks orders that would see the children continue to live with him and he have sole parental responsibility for them. These orders were also proposed by the Independent Children’s Lawyer (“ICL”) at the close of the proceedings.
The Secretary (“the Secretary”) of the Department of Communities and Justice (“the Department”) who intervened in the proceedings acknowledges that there are significant risk factors associated with the care provided by both parents. It is the position of the Secretary that it would be less detrimental for the children to live with the mother than the father. The mother seeks orders that would see the children return to live with her.
In recognition of all of the risk factors present in either parenting arrangement the proper parenting orders for these children are those that are the least detrimental to them.
Background
The mother who is 32 and the father who is 31 met in March 2010 and quickly formed a relationship. That relationship was characterised by family violence perpetrated by the father which is a matter to which I will return at some length later in this judgment.
The parties’ first child (“the daughter”) was born in 2011.
At around the time that the parties met the father was involved in criminal offending including the commission of property offences. He continued this criminal activity after the daughter was born including in relation to the possession of drugs. He served three months in prison in late 2011.
Concerns about the safety and the welfare of the children including inadequate supervision and exposure to domestic violence came to light in September 2011 when the first of 36 reports of this nature were made to the Department. 18 of these reports were considered by the Department as raising a risk of significant harm.
In 2012 the parties’ younger child (“the son”) was born.
After the birth of the son the parties remained in a relationship, albeit one in which there were numerous separations until January 2013 when they separated on a final basis.
Following separation the children lived with the mother. The daughter generally spent each alternative weekend with the father while his contact with the son was less regular.
In January 2014 the father was scheduled under the Mental Health Act 2007 (NSW) and spent 13 days in hospital following his expression of suicidal thoughts and overdosing on prescription medication. Hospital records indicate that he “strongly resisted” admission initially and attempted to abscond.
In February 2014 the father began a relationship with a new partner (“the father’s partner”). The father’s partner was at that time six months pregnant but was not in a relationship with the father of her unborn child.
In February 2014 the father was admitted to hospital again following an overdose of prescription medication and with acute alcohol intoxication. The hospital discharge summary records that the father had an “acute binging pattern”.
In April 2014 the father collected the daughter who was then three years old from preschool on an occasion when she was meant to be in the mother’s care pursuant to an informal agreement between the parties. At that point in time the father was residing between two different hotels and did not advise the mother where he was living. The daughter remained in the father’s care for approximately a week until a Local Court ordered a Recovery Order and the daughter was returned to the mother’s care.
The father’s partner gave birth to a daughter in 2014.
In 2014 or 2015 the mother also formed a new relationship with a Mr F.
Mr F was at that time a user of the substance methamphetamine, commonly known as “ice” and has been diagnosed with mental conditions including depression. In September 2015 Mr F was taken to hospital following an incident in which he took a length of rope and threatened to hang himself following an argument with the mother.
In December 2015 Mr F was admitted to hospital after making threats to jump off a bridge when intoxicated following a dispute with the mother.
In May 2016 there was a violent altercation between Mr F, the mother and maternal grandmother in the presence of the children. The incident arose when the mother had asked to maternal grandmother to come to her home and assist her with the children. Mr F would not permit the maternal grandmother to enter the home and pushed her away while holding the son. A struggle ensued and Mr F punched the mother’s younger brother in the head. An Apprehended Domestic Violence Order (“ADVO”) against Mr F was made but he was not charged with any offence.
In around mid-2016 in circumstances that are unclear the mother had some contact with a Mr G who had previously been convicted and spent time in custody in relation to child pornography offences. A report was made to the Department in relation to a risk of harm for the children arising from the mother’s association with Mr G and a departmental case worker visited the mother’s home. The mother’s home was found to be seriously cluttered to the point that it was unsafe for the children. The mother acknowledged to the case worker that she was depressed which had led to the condition of her home deteriorating.
In June 2016 when a case worker from the Department attended the home to conduct a further home visit it was again observed to be highly cluttered and unclean. There were also holes in the walls caused by Mr F when under the influence of ice.
Between June and September 2016 the Department provided assistance to the mother and Mr F with the care of the children. Concerns for the Department about the mother’s association with Mr G appear to have fallen away by this stage.
Mr F assaulted the mother while intoxicated in September 2016 in an incident when the mother was driving and Mr F became angry about her request that he wear a seat belt. He slapped the mother to the face causing her nose to bleed and later that day punched her numerous times to the head causing bruising and swelling to her face. Mr F was charged with two counts of assault and resisting arrest and upon conviction was sent to prison for five months. An ADVO was made for the protection of the mother against Mr F.
At around the same time of this assault the daughter was seen by a doctor and assessed as having an anxiety disorder. The mother also began engaging with the K Program through a referral made by the Department.
Mr F was incarcerated from September 2016 until February 2017.
In 2016 the father’s partner gave birth to the father’s child (“the father’s other daughter”).
Following his release from prison in February 2017 the relationship between the mother and Mr F resumed.
In March 2017 the Department identified that the child protection concerns in the mother’s care related to the condition of the family home, the children’s exposure to domestic violence, the mother’s capacity to manage the children’s behaviour appropriately and the children’s exposure to sexual activity between the mother and Mr F.
On 21 June 2017 a report was made to the Department indicating that the son had been exhibiting sexualised behaviours towards other children at his child care centre. When spoken to by a departmental case worker the mother and Mr F conceded that the son had witnessed them having sexual relations on more than on occasion.
At around this time a further report was made to the Department to the effect that the son had witnessed and attempted to intervene in an incident of family violence between Mr F and the mother. When this report was investigated the son reported that Mr F smacks the children and yells at them.
Shortly after these complaints were made, at the end of June 2017 the daughter was spending school holiday time with the father as agreed between the parents. During this school holiday period the father made a decision to retain the daughter in his care on the basis that he believed that the daughter had been sexually abused by Mr F. This belief arose from the daughter allegedly making disclosures to him that both Mr F and the son (who was then five years old) had been touching her on the genitals.
On 3 July 2017 a report was made to the Department about the daughter’s alleged disclosures about sexual abuse by Mr F and the son’s sexualised behaviours. In the ensuing investigation by the Joint Investigation Response Team[1] (“JIRT”) the daughter stated in an interview that Mr F had touched her “where she wees” and that the son also touches her in the genital area. Police applied for an Apprehended Violence Order (“AVO”) against Mr F for the protection of the daughter who continued living with the father.
[1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.
The mother was also interviewed as part of the JIRT investigation and in relation to the allegations of family violence perpetrated by Mr F and his physical disciplining of the children. In the course of the JIRT investigation concerning the sexual abuse allegation the mother stated in the daughter’s presence that Mr F had not inappropriately touched the child and asked the child to retract her disclosures. In relation to the investigation concerning physical discipline of the children the mother made some limited admissions about Mr F’s conduct. Although she also told the departmental case worker that she had recently asked Mr F to leave the household the mother said that she expected to reconcile with Mr F as she had recently become aware that she was pregnant with his child.
On 10 July 2017 the mother initiated parenting proceedings in a Local Court. The AVO application against Mr F was listed on the same day as those proceedings. Although the mother had applied for a location and recovery order for the daughter she consented to interim orders that the daughter live with the father and spend supervised time with her for periods of four hours three days a week.
The Local Court subsequently transferred the proceedings to this court were they were ordered to form part of the Magellan protocol.[2]
[2] The Magellan Protocol is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
On 3 August 2017 a decision was made by JIRT that the allegations of sexual harm against Mr F were not substantiated and the mother was informed of this decision.
At this time the interim arrangements for the parties’ son was roughly equal shared care by each of the parents. On 4 August 2017 the father decided that he would not return the son to the mother in accordance with these arrangements on the basis that the son had disclosed that Mr F had physically abused him.
Throughout August 2017 various assessments were made by the Department in relation to the children with the conclusion that they were “safe in the care of the father”. Having made this assessment the Department ceased its involvement with the family.
On 14 September 2017 interim orders were made with the consent of the parents for the children to live with the father and spend weekly time with the mother supervised by the maternal grandmother. There was also a restraint on the mother bringing the children into contact with Mr F.
In November 2017 a final AVO was made for the protection of the daughter from Mr F. This order remained in force until July 2018.
In late November 2017 the father decided that the children were to spend no time with the mother on the basis that he believed that she was not complying with the supervision orders and the restraint on bringing the children into contact with Mr F.
In December 2017 I invited the Department to intervene in the proceedings due to the concerns about risk factors in the care of each of the parents.
In January 2018 the Secretary intervened in the proceedings.
The family were interviewed by a family consultant for the purposes of a Magellan Family Report in January 2018.
In the same month the mother began contravention proceedings in relation to the father’s refusal to make the children available to her. The mother subsequently signed an undertaking that she would not contact Mr F, not discuss him with the children and not discuss the proceedings with the children. She then discontinued her contravention proceedings.
In 2018 the mother’s child H (“the mother’s other daughter”) was born. This child’s father is Mr F.
For a short time from February 2018 the father permitted the children to spend time with their mother. After the third occasion that this occurred, 3 March 2018 the father once again ceased facilitating the children’s time with their mother. The children spent no time with her until mid-July 2018 when time recommenced in accordance with court orders made the previous month. These orders provided for professional supervision of the mother’s time in a nominated location for three hours each alternate Sunday. This became the pattern for the children’s time with their mother up until the hearing in February 2019.
Events following the trial
At the commencement of the trial in February 2019 it may have been considered that there were a greater number of risk factors to the children in the care of the mother than the father. The children were living with the father in an arrangement which the Department considered was ‘safe’ for the children and spending limited supervised time with the mother.
Under cross-examination however, the father made a number of concessions which confirmed that there were some significant risk factors to the children in his care. He conceded that his relationship with the mother had been characterised by verbal and physical abuse and that he then regularly used methamphetamines, cannabis and alcohol which had the effect of making him behave in an erratic, aggressive and agitated manner. The father acknowledged that his drug and alcohol use (when in a relationship with the mother) was such that he has no memory of being physically violent towards her, though he accepted that he had. The father also accepted that he had been physically violent towards a previous partner and that an AVO had been made against him for her protection and for the protection of another former partner.
At the completion of the evidence of the father on the fifth day of the hearing the proceedings were adjourned part-heard until May 2019. At this time interim orders were made with the consent of the parties increasing the mother’s time with the children to four hours each alternate Sunday and the requirement for supervision was also discharged.
On 10 May 2019 the hearing was to be completed with evidence of the case worker from the Department, but none of the parties pressed for this witness to be cross-examined. At this court event the father’s legal representative also indicated that the father had changed his position significantly. The father no longer sought orders in line with his proposal at the commencement of the trial restricting the mother’s time with the children to one hour of supervised time per month and instead supported the proposal of the ICL subject to a very small amendment.
The ICL’s proposed orders which were known for the first time at the May 10 2019 court event would see the children live with the father who is to have sole parental responsibility for them. The ICL proposes that the children spend defined time with the mother on each alternate weekend during the school term from after school on Friday until 5pm Sunday, for half of the school holidays and on special days.
The mother reiterated her proposal that the children live with her, that she have sole parental responsibility for them and that they spend each alternate weekend from after school on Friday until the start of school on Monday, for half of school holidays and on special occasions with the father.
While the Secretary of the Department did not propose orders counsel submitted on behalf of the Secretary that the least detrimental option for the children would be for them to live with the mother. No specific proposal was supported in relation to the children’s time with the father.
Orders were made on the final day of hearing for written submissions to be provided to chambers and judgment was reserved on 5 July 2019 upon these submissions being received.
The mother
The mother aged 32 grew up in circumstances characterised by deprivation and dysfunction which would appear to have implications for these proceedings. She does not depose in her affidavit to any matters in relation to her life prior to meeting the father in 2010 except to say that she has received a disability support pension for her “difficulties with reading and writing/slow learning” since she was 16 years old.
In the course of cross-examination of the mother it was revealed that she had been diagnosed with Attention Deficit Disorder as a child and had throughout her schooling been in an IM class (for children with learning disabilities). Further, although there was no formal assessment of the mother’s intellectual disability the mother’s presentation appeared consistent with her evidence about receiving a disability support pension on the basis of being a “slow learner”.
Family violence
The mother has a long history of being exposed to family violence. Under cross-examination she gave evidence of having witnessed severe domestic violence as a child perpetrated by her father against her mother and remembered on one occasion being taken from her home by the police as a very small child causing her significant distress.
The maternal grandmother when cross-examined also confirmed that she had been the victim of violence perpetrated by the maternal grandfather. She says that the mother was exposed to a great deal of this violence throughout the mother’s childhood which she agreed would have had a significant impact upon her. The maternal grandmother demonstrated some understanding of the impact of exposure to family violence upon the mother stating that it impacted the mother’s schooling, her ability to trust people and has established a pattern in which the mother “picks the wrong people” for personal relationships.
The mother and father met in their early 20’s and formed a de facto relationship very quickly. As touched upon earlier the father had already at this stage a history of violence in at least two relationships, was misusing substances heavily and was involved in criminal conduct.
The parties almost immediately moved away from the mother’s family in a regional area in New South Wales to a regional area in Queensland where the father had family connections. The mother became pregnant very soon after with the parties’ first child.
The mother was assaulted by the father on at least one occasion when pregnant and on at least one other occasion in April 2011 when the parties’ daughter was about two months old. Each of these assaults was serious. On the first occasion the father punched the mother causing her to suffer a bruised eye and on the other occasion he attempted to strangle her. The mother was also the victim of the father’s controlling conduct and verbal abuse as discussed when considering the father later in these Reasons.
Sometime after separation from the father the mother re-partnered with Mr F. Mr F posed a similar risk to the mother and the children as had been posed by the father. Mr F misused substances and in particular methamphetamines, had been diagnosed with various mental conditions including depression and was violent towards the mother and other members of her family in the presence of her children.
The mother was physically assaulted by Mr F in September 2016 when she was punched in the face three times while driving. Later that day Mr F again punched her a number of times to the face. The police report of this incident indicates that she sustained bruising to both eyes and swelling to her face. Mr F was found guilty of two counts of assault and resisting arrest and served five months in custody and an ADVO was also taken out for the mother’s protection.
It also arose in the course of cross-examination that Mr F strangled the mother to the point where she began to lose consciousness on one occasion. The details about this event are confusing but this appears to have occurred in around July 2016. Mr F gave evidence that he had no memory of strangling the mother but that he accepted that he had done this.
During the course of her cross-examination the mother remained adamant that the children had never witnessed or been exposed to domestic violence in her household and as such they were not adversely impacted. She did acknowledge that the children may have heard some of the violence, but she considered that this would not have been sufficient exposure to have had a negative effect upon them.
Under cross-examination the maternal grandmother deposed that in May 2016 there had been an incident in which she and Mr F had an argument and Mr F pushed her to the ground causing her to hit her face. Although the mother had been insistent that the children were not present during this incident, the maternal grandmother deposed that the assault occurred in the presence of the son.
The family consultant expressed significant concern regarding the mother’s ability to protect the children from exposure to family violence. She opined under cross-examination:
[The mother] presented as quite minimising in terms of the incident that had occurred, which I understand Mr F was convicted of. And that raises some concerns to me about her understanding both of the dynamics of family violence, about the potential impact on her as a parent and about the potential impact of the children being exposed to family violence and that she has a limited capacity, therefore, to protect the children from exposure to further incidents of family violence, if they were to occur…
[The mother] has limited understanding of what the issues are in relation to that. I would also be concerned that if the children did exhibit behaviours or emotional difficulties relating to exposure to family violence, that her apparent lack of insight into those issues may result in her not appropriately identifying them as relating to family violence and therefore not appropriately attending to them…
The impact on the children of her not appropriately addressing the impact – issues arising from exposure to family violence may mean that there’s a cumulative trauma effect which may exacerbate any impact on the children. So behavioural difficulties can be exacerbated. The children’s emotional wellbeing can be detrimentally impacted. It can have an impact on academic performance, social relationships. It can be quite a wide ranging impact.
I am of the view that the mother has normalised being the victim of violence in intimate relationships and demonstrates little understanding into the significant adverse impacts upon herself and the children from exposure to serious violence in their home.
Neglect of the children in the mother’s care
There is evidence that the mother’s home was in very poor condition and unsafe for the children when the children were residing with she and Mr F.
Departmental records indicate that the mother’s case worker conducted a home visit in June 2016 in which she recorded: “[the home was] extremely cluttered with unusable and broken furniture, clothing, toys and random items. The mirror of the dressing table in [the daughter’s room] was broken… the carpet was sticky underfoot. Clothing was piled in front of the heater…[there were] holes in the walls of the house… the backyard was littered with children’s toys, an old car was sighted to the side of the house (in the backyard) and a dismantled, large garden shed was stacked vertically against the fence”.
The case worker also records that the mother was provided with a skip bin for rubbish removal and a plan was formulated in order to provide a safer home environment for the children.
Under cross-examination the mother gave somewhat conflicting evidence about the state of her home at this time. She conceded that her home had been cluttered with clothes and conceded that many of the observations of the case worker were correct but remained of the view that the house was at this time not unsafe and was an appropriate home for the children.
The mother has however cleaned and decluttered the home since Mr F ceased living with her and there is no evidence to suggest that she has not maintained it in a satisfactory condition since that time.
The mother has demonstrated some capacity to meet the children’s complex medical and health needs. She took the daughter to a paediatrician in October 2016 when this child was found to exhibit features of Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”) but was too young to be formally diagnosed. As this child was also exhibiting signs of anxiety the mother was also making arrangements for her to see a psychologist in accordance with the paediatrician’s recommendations at about the time the father took the children into his care.
The mother engaged the son with a speech therapist in 2016. She deposes to attending upon the speech therapist approximately five times and providing assistance through exercises conducted at home as instructed by the therapist. The mother deposes to informing the father about the home based assistance so that he could also assist the son when in his care.
In February 2017 the mother attended upon a paediatrician with the son. The paediatrician reports that this child exhibited symptoms of expressive language delay, features of ADHD and ODD, articulation difficulties, recurrent tonsillitis and hearing loss. The son was also referred to a psychologist and the mother followed up this referral.
The mother has also engaged her other daughter (who is not the subject of the proceedings) with a paediatrician, and other medical specialists who she sees regularly due to this child being born prematurely.
Risk of harm arising from sexual abuse
There have been a number of allegations in these proceedings that the mother has exposed the children to a risk of harm arising from sexual abuse.
Although the Department had been aware of concerns in relation to the safety and welfare of the children from September 2011 when the mother was pregnant for a second time it appears that the Department only began providing assistance to the mother from about mid-2016. At this stage it appears that the concern for the Department related to the mother’s relationship with Mr G who had been convicted and spent time in prison for child pornography offences.
Under cross examination the mother contended that her relationship with Mr G was a platonic friendship and had never been intimate. The mother deposes that she and Mr G were introduced by his step-mother, who is a family friend. It is the mother’s evidence that the children spent time with Mr G before she became aware that he had been charged with child pornography offences. She deposes that she immediately ceased her involvement with Mr G when she first became aware of the nature of his offending when visiting him in prison with the children in May 2016.
I accept the evidence of the mother as to the nature and extent of her relationship with Mr G for the following reasons. The most likely inferences to be drawn from the undisputed evidence is that this friendship developed when the mother’s relationship with Mr F was precarious and that Mr F exaggerated the extent of this relationship to the father for his own purposes. It is to be noted that the genesis of the Department’s concern appears to have been complaints by Mr F and the father about the mother’s relationship with Mr G. The concerns raised by both of them appear to have been opportunistic in circumstances where Mr F and the father had reason to paint the mother in a bad light.
I accept that it is likely that the mother ceased contact with Mr G as soon as she became aware of his criminal conviction for child pornography related crimes as there is no evidence to the contrary. Although there were concerning features about the content of much of the mother’s evidence she presented as open and honest and was prepared to make concessions including against her own interest. Her evidence was generally consistent with undisputed facts in the proceedings and I have no reason not to accept it in relation to this matter.
As touched upon earlier in this judgment in mid-2017 the father had further concerns that the daughter may have been subjected to sexual abuse. He deposes that the daughter began complaining at about this time of a sore and itchy vagina. The father’s partner then took this child to a general practitioner who diagnosed a urinary tract infection (“UTI”).
The father’s partner who had been sexually abused as a child and experienced a number of UTIs suspected that the daughter may also have been abused. For this reason the father’s partner asked the child “does anyone touch you down there” to which she says the child responded “yes [Mr F] use to but now [the son] does and it hurts and [Mr F] told me not to tell anyone but its ok to tell you” (sic).
This “disclosure” was reported to the Department and the child was subsequently interviewed by JIRT. The allegations were not substantiated by JIRT, that is they were not determined by the Department to be proven.
It had been the father’s belief that the son’s behaviour at around this time may also give rise to a concern that he had been the victim of sexual abuse.
In this regard it emerged in the evidence that there had been an incident in June 2017 at the son’s day care centre. Records of that service indicate that this child reportedly ran around the room yelling “stop you fucking paedophile” repeatedly and the he was “touching girls inappropriately”. When this matter was discussed with the mother it is recorded that she responded by saying “he’s probably seen [Mr Reeves] doing that to me, he likes to sneak to the bedroom door and watch”.
A file note record produced by the Department indicates that a risk of significant harm report was made at this time to the effect that the son grabbed a female peer by the genital area and laughed afterwards.
The father did not ultimately contend that either of the children are at risk of sexual abuse in the care of the mother. On the third day of the hearing the father’s counsel submitted on his behalf that it was no longer part of the father’s case that the children were at risk of sexual abuse and for this reason the evidence concerning this allegation was largely untested. The father and ICL when proposing final orders and the Secretary of the Department in taking his final position in the proceedings also implicitly accept that there is not an unacceptable risk of sexual abuse in the mother’s care as each of these parties seek or support orders that the children spend substantial time with or live with the mother.
Although the contentions concerning sexual harm were not pressed they are in my view of such a nature and of such relevance to a consideration of the best interests of the children that findings in this regard must be made.
To a large extent, the contention that the children may be at unacceptable risk of harm arising from sexual abuse in the mother’s care rely upon the suggestion that the daughter was sexually abused by Mr F in the mother’s household.
In my view there is insufficient evidence from which a positive finding could be made that Mr F sexually abused the daughter.
The first item of evidence in relation to this matter is the apparent disclosure made by the child in response to questioning by the father’s partner and the fact of the child having experienced a UTI at around this time and other times.
Although the father’s partner considered that the child having a UTI was indicative of sexual abuse as a result of her own most unfortunate childhood experience, there is no expert evidence to suggest that this is the case. There is also a positive explanation for the child’s recurrent UTIs given by the mother which was not challenged. She says that the paediatrician who had seen the child advised that the likely explanation for the UTIs was the child not wiping herself correctly after toileting.
Further, although I have no doubt that the father’s partner was well intentioned, I have real concerns about the reliability of the daughter’s disclosure which arose from a leading question posed by the mother’s partner about that matter. Further, I attach weight to the finding by JIRT that the allegation was not substantiated. It was also not suggested to Mr F under cross-examination that he had sexually abused the child and this allegation was abandoned by the father in the proceedings.
It had also been part of the father’s case that the daughter disclosed that the son then aged about five had also been touching her inappropriately and that this behaviour, it was suggested had been taught to the son by Mr F.
Although this last mentioned matter was not pursued there were some lingering suggestions that the son’s behaviour at day care in around June 2017 in touching a female child inappropriately and this child’s use of language at child care may be indicative of him being the subject of sexual abuse and that this child may pose a risk of harm to the daughter himself.
I formed the impression in the final hearing that despite having raised this matter the father did not have genuine concerns about risk arising from the son’s behaviour. For example the father told the family consultant and it was confirmed at the hearing that at his home he and his partner had the son sharing a bedroom with his other daughter who was then aged one, which seems inconsistent with any genuine concerns about the son’s conduct.
The family consultant was cross examined about the son’s conduct at childcare and opined that it is possible that these behaviours are within typical childhood behaviours. She said that there was insufficient detail about the conduct to form a conclusion as to whether it is in indicative of the child being exposed to sexual abuse.
It was also not disputed in the proceedings that the mother and Mr F had exposed the son to sexual activity between themselves on at least one occasion which may account for this behaviour.
Although the mother’s disarming honesty and apparent failure to grasp the significance of exposing a child to adult sexual activity is highly concerning, there is no evidence to suggest that the son was sexually abused in the mother’s household by any person. My concerns about the mother’s poor understanding about appropriate boundaries by failing to protect the son from being exposed to adult sexual activity is a matter to which I will return.
Although I am not satisfied to the requisite standard for the reasons given that either of the children have been sexually abused in the mother’s household the question to be determined is whether the children will be exposed to an unacceptable risk of sexual abuse under the parenting orders proposed.[3]
[3]M & M (1988) 166 CLR 69; [1988] HCA 68 at [23] – [25].
When considering the existence and magnitude of the risk of sexual harm in the mother’s care there is however virtually no other relevant evidence. The only other matter to be considered in this regard concerns the mother’s relationship with Mr G, a person convicted for offences relating to child pornography. As I am satisfied for the reasons given that once the mother became aware of Mr G’s criminal activity she ceased having any contact with him and there is no other evidence concerning that relationship in my view this evidence is very equivocal and little weight can be given to it.
Finally, there are some concerns about the mother’s judgement in personal relationships arising in the maternal grandmother’s view from exposure to domestic violence as a child. It is also likely in my view that the mother’s limitations arising from her “slow learning” are relevant to her presentation as being somewhat naïve and lacking judgement.
Despite this observation, there is in my view insufficient evidence to suggest that the mother does not appreciate the seriousness of child sexual abuse. For example the mother told the family consultant that she was aware of the allegation made by the father that Mr F had sexually abused the daughter and said that she too would have reported such a matter to the police if this child had reported it to her.
Taking all of the foregoing matters into account I am not satisfied that there is an unacceptable risk of harm arising from sexual abuse of the children in the mother’s household.
The Father
The father aged 31 is a part time industrial worker. He also provides very little information about his upbringing, except to say that he has not had a relationship with his family for some years. He deposes that this is because in around 2009 allegations came to light that his mother (“the paternal grandmother”) had sexually abused a younger paternal uncle and was charged with child abuse offences.
Other matters relating to the father’s early life and relationships prior to meeting the mother which are relevant to these proceedings emerged under cross-examination.
Drug and alcohol use
First, it was revealed in oral evidence that the father began using illicit drugs and in particular cannabis at the age of 13. Following the death of his first child as an infant in 2005 the father became engaged in heavy use of the drug “ice” and his cannabis use increased to a daily activity. He also began drinking alcohol to excess.
In his affidavit the father deposes to using illicit drugs until approximately 2010 (having met the mother in March of that year and begun a relationship soon after). He deposes that he has not used any drugs since this time, though his evidence in relation to this matter varies considerably.
The father reported previous very heavy alcohol use to the family consultant saying that he was “just drunk all the time basically” at the commencement of his relationship with the mother. He also reported previously using a wide range of illicit drugs “all the time, every day”. He told the family consultant that he last used illicit drugs approximately six to seven years prior to the interview, (2011 – 2012) had reduced his alcohol use significantly after the children were born and currently drinks alcohol “very rarely”.
In the course of cross-examination the father conceded that throughout his relationship with the mother he used “ice” every few days consuming between “one and two points” each time. He also used cannabis daily and drank two cartons of beer and a six pack of bourbon cans each day. The father gave evidence that his drug and alcohol use at this time was so heavy that he has little or no recollection of any of the incidents of domestic violence but did not appear to doubt that they had occurred. The father then gave evidence of experiencing his final relapse into drug abuse in about 2013, being the year in which he and the mother separated.
I have concerns that substance misuse may remain an issue for the father. I have doubts about the reliability of his evidence concerning his substance abuse given that he variously says he has not used illicit drugs since 2010, 2012 and 2013. His evidence of having reduced his alcohol use significantly after the daughter was born in 2011 is also at odds with his other evidence including his ultimate admission that his alcohol use was “a little bit” problematic as recently as 2015. The father also does not refer at all to the misuse of prescription medication in his affidavit or when interviewed by the family consultant although these substances may give rise to the greatest concern.
Hospital records indicate that the father was admitted to hospital in January 2014 and scheduled under the Mental Health Act 2007 (NSW) following an overdose on prescription medication. The following month, February 2014 he was again admitted following an overdose of prescription medication and with acute alcohol intoxication. The hospital discharge summary records that the father has an “acute binging pattern.”
There is no evidence to suggest that the father has ever undertaken treatment or an abstinence program to assist him in relation to his drug and alcohol misuse, other than that during his incarceration in 2011 he completed courses to address these matters. It appears that he suggests that these courses were effective. The foregoing evidence concerning admissions to hospital and his statements of continuing use after that time suggests the contrary.
At the final hearing the father contended that he overcame his illicit drug and alcohol issues by simply ceasing use of these substances and ceasing contact with people who were encouraging him to use drugs and consume alcohol. He does not however address the significant and more recent matter of concern in relation to misuse of prescription medication.
In summary while there is no clear evidence to suggest that the father has been recently hospitalised in relation to the misuse of substances or that these are currently matters of concern in relation to his care of the children I am not satisfied that he has not misused any substances or alcohol for many years as he contends. While I cannot make any positive finding in relation to this matter it remains a potential risk factor having regard to the period over which the father misused substances, the extent of his usage and that it was associated with his use of violence, challenges with his mental health and impairment of his functioning, such as his memory.
Family violence
The father has history of perpetrating family violence in intimate relationships. Although these matters were not deposed to in any detail in his trial affidavit, he conceded under cross-examination to having been violent toward a number of intimate partners. In particular, prior to his relationship with the mother the father had been in two relationships where court orders were made against him for the protection of his partners.
Although the father was evasive about the incidents which led to the ADVOs being made against him he admitted that he had been violent in these relationships. The father claimed that he was unable to provide any other information as to the nature of the violence in these relationships as he “could not remember”.
Although the father deposed to have no memory of perpetrating domestic violence against two previous partners he conceded under cross-examination that the children of one of these previous partners was exposed to his violence.
I am satisfied that the father was also verbally and physically abusive towards the mother on a number of occasions and engaged in controlling and coercive behaviours towards her on other occasions.
In his affidavit the father denies all of the mother’s allegations about his violence against her but in the course of cross-examination acknowledged that he had perpetrated both verbal and physical abuse and had acted in a controlling manner towards her.
The father conceded that he yelled, screamed, and called the mother names and admitted that “I grabbed her once and punched her”. The father also conceded that he grabbed the mother by the throat but said he had no further recollection of this incident. He also agreed that he restricted the mother’s relationship with her family and refused to allow the mother to visit the maternal grandmother, threatening to take the newborn daughter from her if she disobeyed him. Under cross-examination the father accepted that he behaved in this way in order to exercise control over the mother.
These concessions are consistent with the mother’s evidence that the father punched her to the face causing a black eye when she was pregnant with their daughter and on that occasion in early 2011 grabbed her by the throat when she was holding their infant daughter.
The mother’s version is also consistent with police records tendered in the proceedings. One police record concerns an event in April 2011 when police were called to the parties’ home after the mother told the father that she intended to take the daughter to spend time with the maternal grandmother in New South Wales. According to this record the mother reported that the father became aggressive and angry and threatened to take the child and shoot the mother and her whole family. The police records indicate that at this time the mother also disclosed the previous physical abuse in which the father punched her in the face and grabbed her by the throat. Due to concerns about the mother’s safety and her need for protection an ADVO was made against the father at this time.
The mother reported to the family consultant that the father was controlling towards her during the relationship. In particular she reported that he did not approve of her talking to her mother, that he had broken a number of her phones and was jealous and accused her of cheating.
The father has not undertaken any programs to address his violence and in my view demonstrates no insight into the impact of the family violence perpetrated against two previous partners and the mother to which the children were exposed.
Although there is no evidence which would suggest that the father has committed any family violence in his current relationship a risk that the children may be exposed to family violence arises from the fact that it has occurred in three prior intimate relationships, the father’s lack of insight or responsibility for his past violence and as he has undertaken no steps such as participation in men’s behaviour change programs to address this conduct.
The father’s mental health
The father deposes that he began experiencing mental health difficulties when he was aged 17 and his first child of the relationship he was in at the time died as an infant. The father does not however elaborate on the nature of these difficulties or whether he sought therapeutic intervention.
The father was prescribed antipsychotic medication during his time in custody following a drug-induced psychosis in 2009 which had resulted from his consumption of, in his words, a “combination of all kinds of drugs”. In December 2013 the father’s dose of this medication was doubled but he conceded that he was non-compliant and did not take this medication consistently in accordance with his prescription.
Hospital records indicate that the father has twice been admitted to hospital due to issues with his mental health. In January 2014 he spent approximately two weeks in hospital following an overdose of prescription medication and concerns regarding his suicidality. He was discharged following a diagnosis of paranoid anxiety and substance use issues and was referred to Community Mental Health Services. The father gave evidence that following his discharge he ceased taking his antipsychotic medication which he says he was recommended by hospital staff.
A short time later in February 2014 the father spent one night in hospital following an overdose of medication and acute alcohol intoxication. On this occasion he was given the principal diagnoses of adjustment disorder and alcohol abuse. The father was referred to a support group for his mental health issues which he says he only attended on three to five occasions as he relocated and the particular organisation did not operate in his new location. The father admitted that he did not seek out any other organisation after his relocation.
The father reported to the family consultant that following his discharge he was prescribed medication, which he ceased taking some time later that year. The father reported of his mental health concerns that “it all seems to have gone away since all the drug use has stopped” and “I’m away from everything that triggered it”.
The father’s current partner gave oral evidence that the father had not told her about his mental health difficulties and indicated that she was only aware of the problems associated with the father’s drug induced psychosis.
Therapeutic Intervention for the Children
The father asserts that the children have been seeing a psychologist since October 2017 and that they attend upon her approximately once a fortnight or as she directs.
The father deposes that he engaged the psychologist to manage the children’s “ongoing behaviours surrounding the contact they have with [the mother], assist the children with their past trauma and support the children in their change of residence and circumstances.” He then said under cross examination that a referral was made to this psychologist by the children’s general practitioner based on information he had disclosed about the daughter wetting herself and the allegations of sexual assault.
The father gave evidence that to his knowledge the psychologist he engaged does not have any speciality in child sexual assault counselling. He then conceded that as the sexual abuse allegations were one of the main reasons for referral to the psychologist, it did concern him “a little bit” that she had no speciality in that area. However the father also gave evidence that he considered the psychologist had the most insight into the children’s issues and considered that she knew what the best help for the children would be.
The father’s evidence is that he and sometimes his partner attended the appointments with the children and spoke to the psychologist in the presence of the children about concerns regarding the children’s various issues and the alleged impact of problems associated with previously being in the mother’s care.
In my view, it can be inferred from the form of the psychologist’s report that it was obtained for the purposes of the supporting the father’s contention that the children’s behaviours have improved as a result of coming to live with he and his partner and to make recommendations in relation to an appropriate contact regime with the mother according to the psychologist’s view about the children’s best interests.
As I indicated in the course of the proceedings the father was not permitted to rely on the part of this report that related to the psychologist’s opinion concerning appropriate contact between the mother and the children.
A further inference that may be drawn from the content of the report is that the engagement of the psychologist was not entirely for a genuine purpose to provide a therapeutic intervention for the children but also as an attempt by the father to garner evidence in this case.
When questioned about this matter, the family consultant said that she would be concerned if a therapist engaged to provide an intervention service for the children had not provided that service or that it had been redirected to becoming part of the dispute and conflict between the parents. In particular she was concerned that the children had been exposed to the parental conflict by being privy to conversations between the father and psychologist in which the father’s concerns in relation to the mother’s care were discussed.
The father’s partner
The father commenced a relationship with his current partner, aged 30 in February 2014, at which time she was pregnant with a child from a previous relationship.
The children have been in the full time care of the father and his partner since mid-2017, spending only limited time with the mother. The father and his partner both depose that the father’s partner does the majority of caring for the children since they have been living in the father’s household. The father informed the family consultant that this was due to his work commitments which involves both day shifts and night shifts on a rotating roster.
The father’s partner told the family consultant that she regards the parties’ children “as my own” and has a “mother role” in relation to them.
The father’s partner also reported that the daughter requested to call her “mum” approximately a year after coming to live in her household.
When interviewed by the family consultant the daughter initially referred to the father’s partner as “mummy”.
Under cross-examination the father’s partner demonstrated virtually no awareness of the father’s history of violence in past intimate relationships. Her limited awareness of these matters was that it occurred only in the context of the father’s drug use. She was unable to acknowledge that the father posed any current risk to herself or the children and deposed to having “never seen an angry side to him”.
The father’s partner also has been the victim of family violence in the relationship with the father of her first child but has not ever sought assistance from a family violence service.
The family consultant’s evidence
The family consultant interviewed the family members in January 2018. At this time the children had been living with their father for over six months and had not seen the mother since November 2017.
The father reported that he most recently did not facilitate the children spending time with the mother due to his concerns that the maternal grandmother was not adequately supervising the time and as the maternal grandmother had been associating with the paternal grandmother from whom he was estranged because of the paternal grandmother’s sexually abusive conduct towards a paternal uncle. He was also concerned that the mother had facilitated telephone and physical contact between the children and Mr F when there was an AVO in place restraining that contact.
When interviewed the mother was heavily pregnant with Mr F’s child and due to give birth in about six weeks. The mother told the family consultant that she did not know if she and Mr F would reconcile and at that stage Mr F was not speaking to her.
The children’s circumstances were the same in January 2018 as at present. They live with the father and his partner in a regional centre around 70 kilometres from the mother. The father’s household then and now also comprised his partner’s other daughter who was then almost three and the daughter of the father and his partner who was then just over one.
The father did not disclose to the family consultant his full history in relation to family violence. He reported only that he and the mother had verbal altercations and that AVOs had previously been made against him for the protection of two partners in relationships prior to meeting the mother.
The father reported being admitted to a psychiatric facility on two occasions four to five years prior to interview related to depression and “drug induced psychosis”, which the family consultant noted was not supported by hospital records.
The father’s partner reported no family violence in her current or previous relationships.
When interviewed the father initially identified no concerns regarding the children’s development or wellbeing. He also reported no current concerns regarding the daughter’s education but then indicated that this child required additional support from her teacher and had an education plan.
The father reported that although he was aware that concerns had been raised by others in relation to the son’s speech there were no current concerns of that nature. This assessment was supported by the father’s partner who stated that the children “were doing great”.
When considering a different issue (contact with Mr F) during another point in the assessment the father’s partner also reported that the daughter “wets herself” and the son soils himself “approximately 90 per cent of time” when they hear Mr F’s name but are otherwise toilet trained.
When the daughter was spoken to by the family consultant this child had no knowledge about why she and her brother stopped living with their mother, was unsure about the current arrangements to spend time with her mother and did not know why that was occurring.
The daughter spoke generally positively but with limited detail of the father reporting that he works “sometimes all week” and also “does fun stuff” with her.
The daughter stated that there is “nothing” positive about the mother and when asked about the mother’s negative attributes she said “everything” but provided no further details of specific concern.
When asked about Mr F, the mother denied that he was controlling or physically abusive but indicated that he was psychologically abusive, reporting that he “calls me a slut and everything too”. She denied that her children had ever been exposed to family violence which appeared to the family consultant to be inconsistent with the documents produced on subpoena.
The maternal grandmother reported that Mr F was incarcerated for assaulting the mother but added “the kids weren’t there at the time”. She also said that when intoxicated Mr F pushed her to the ground.
The maternal grandmother added (in the context of considering the allegation about alleged sexual abuse) that “if [the mother] has [Mr F] back she is an idiot”. She described Mr F as “not a nice guy” and said the mother “would be better off without him”. The maternal grandmother denied that the children had contact with Mr F since they have been spending supervised time with their mother.
The issue of the allegations of sexual abuse were considered at some length by the family consultant in her interviews with the parents, as that matter was then a principal issue of concern.
Another current concern at the time of the family consultant’s assessment for the purposes of the family report was physical abuse of the children.
The father reported that he retained the son in his care due to this child disclosing that Mr F was “mean” to him including having put him on train tracks, locked him outside, hurt him and locked the daughter in the bedroom with a padlock.
Both parents reported to the family consultant concerns about the children being neglected in the care of the other parent and about harsh physical discipline being perpetrated by the other parent.
The family consultant considered the concerns that had been raised about child protection and wellbeing contained in the Project Magellan Report and asked each of the parents about family violence, substance abuse, mental health difficulties and issues in relation to the children’s development or wellbeing.
The family consultant’s overall evaluation including in particular her observations concerning the children, their development and relationships are matters which will be considered at greater length when having regard to the best interest considerations. At this stage it suffices to say that the family consultant identified at the time she prepared her report in early 2018 that the central issue in the dispute was whether the children had been abused and/or are at risk of harm in each parent’s care.
In this regard the family consultant opined as follows:
Abuse of children can be associated with detrimental impacts on a child’s physical wellbeing, including significant injury, and is associated with significant and enduring detrimental impacts on their psychological wellbeing, which can lead to a range of internalising and externalising difficulties. It is possible that the challenging behaviours reported in filed material to have been exhibited by [the son] and the children’s reported soiling behaviours are due to them having been abused or having contact with a perpetrator. However, it is also possible that these behaviours are due to other factors, irrespective of whether or not there is veracity to the allegations regarding abuse and/or neglect including exposure to parental conflict.
In relation to family violence while noting that the determination of the veracity of the allegations made by the mother regarding the father is a matter for the court the family consultant opined that the mother’s account of family violence allegedly perpetrated by the father is most consistent with coercive and controlling type family violence.
The family consultant also noted that if there is veracity to the mother’s allegations then consideration should be given to any associated risk of harm to the children in the father’s care.
As the mother and maternal grandmother’s accounts indicated that Mr F perpetrated family violence against the mother on at least one occasion the family consultant said that consideration should therefore be given to the risk of the children being exposed to family violence in the mother’s care.
The family consultant also expressed an opinion in relation to parental substance abuse including alcohol abuse and its known detrimental impact on parenting. The family consultant observed that the information provided by both parents regarding the father’s drug use and mental health appeared to relate to historical concerns.
When formulating recommendations about the most suitable parenting arrangements for the children the family consultant recommended that if the children are determined to be at an unacceptable risk of harm in either parent’s care they should spend supervised time only with the parent that poses the risk or no time if suitable supervision arrangements are not practicable. She acknowledged that this may result in the determination that neither parent is a suitable carer for the children and in this regard noted that the Department had intervened in the proceedings.
The family consultant recommended that if it were determined that a parent poses a risk of harm which is not unacceptable that the children live with the other parent and spend a maximum of one day per fortnight with the parent who poses harm to them and that orders be made which attempt to minimise the risk depending upon the specific nature of that risk.
If the court determines the children are not at risk of harm in either parent’s care then the family consultant recommended that the children continue to live with the father and spend time with the mother each alternate weekend and half of the school holidays. Such a recommendation was made having regard to the assessed deficits in the mother’s parenting capacity and also as it would provide opportunities for the children to build and maintain relationships with both parents and their maternal and paternal half siblings. The family consultant did however acknowledge that this would result in the children primarily being cared for by a non-biological parental figure, the father’s partner.
The family consultant was cross-examined by each of the parties in the proceedings. She was informed of the various changes in circumstances since she had interviewed the family and allegations in the proceedings in particular that the suggestion that the daughter had been sexually abused in the care of the mother was not pressed in the final hearing. She was also informed that at the time of giving evidence the mother was having some contact with Mr F including spending the night in his home to enable him to have some time with their daughter but maintained that they were no longer in an intimate relationship.
When the family consultant was asked about the current concerns in the mother’s household she reiterated her significant concerns about the mother’s ability to protect the children from exposure to family violence and the mother’s understanding about the dynamics of family violence and its impact upon her as a parent and on the children.
The family consultant said that the second matter that concerned her in relation to the mother’s care was her capacity to meet the day to day needs of the children. The mother appeared to the family consultant to be focussed on her grievances about the father and to have very little child focus which raised some concerns about her understanding of the children’s needs. The family consultant also expressed concerns about the mother’s “general protective capacity largely due to a lack of understanding about what situations and circumstances may pose a risk to the children and therefore her ability to protect the children as a result.”
Although in her report the family consultant had referred to a number of risk factors in the father’s care as historical in oral evidence she confirmed that some of these matters may be regarded as potentially ongoing and current. In particular she had concerns regarding the father’s family violence having read all of the material that came to light in the course of the hearing. The family consultant said that her concerns were increased as the father had a history of family violence within a number of relationships which increases the likelihood that there would be family violence in his current relationship. The family consultant was not comforted by evidence from the father’s partner about an absence of violence in their current relationship because she said risk arises not only from physical violence but from a dynamic of interacting with a person who may exercise coercion and control and the high unlikelihood that the person would just stop engaging in that dynamic without a significant attitude shift.
When asked about the father’s capacity to care for the children, the family consultant said she did have some concerns about his understanding of the children’s needs, particularly in relation to medical and therapeutic matters and following through or engaging with treatment providers. One final concern that the family consultant had in relation to the father was his lack of willingness to facilitate the children having a meaningful relationship with their mother. In particular, the family consultant was concerned about the father having unilaterally ceased the children’s time with their mother and previously having retained the daughter and the possibility that this was not due to genuine beliefs or concerns by him that the children generally were at risk of harm with their mother.
The family consultant also reiterated as had been foreshadowed in her report that the Court may determine that the children are at unacceptable risk of harm with both parents but there may be no available alternative arrangement given that the Department, although being a party, was not seeking any orders.
There was then some considerable exploration in cross-examination of the expert of the possibility of the Court finding that the magnitude of harm is similar in both households but that it arises for different reasons and a consideration of the relative harm in each parent’s care.
So far as the risk of family violence in each parent’s care is concerned, the family consultant expressed greater concern in the father’s household if the father himself is found to be the perpetrator than in the mother’s household where exposure to family violence may be minimised by an order restraining her from bringing the children into contact with a perpetrator partner.
The family consultant also agreed that there were issues in relation to neglect and difficulties meeting the children’s needs in both households but these were also of a different type. She reaffirmed her concern that as both parents seemed to have the propensity to attribute any challenging behaviours or difficulties to the other household, that there is a risk that both parents will fail to address adequately issues relating to the children. In this regard however, the family consultant agreed that a protective factor for the children may be professional involvement to address the various presenting problems. So far as obtaining assistance from external agencies is concerned, the family consultant agreed that the mother had been more attentive to obtaining professional help than the father. In terms of the relative risk in each household arising from a failure to meet the children’s needs, the family consultant opined “if the children are getting some intervention in one household and none in the other, then getting some intervention is preferable to no intervention.”
In relation to the issue of specific services being provided to the children the family consultant opined that the mother appeared to have a greater insight into the children’s specific medical needs than the father, though she expressed some concerns about the mother’s ability to take responsibility for any contributing behaviour in relation to the children’s challenges that need addressing.
The family consultant was also cross examined about the caregiving in each of the parent’s homes and in particular her understanding that the main caregiving in the father’s household is undertaken by the father’s partner, a non-biological parent.
Under cross examination the family consultant was asked about the psychologist who had been engaged by the father and his partner to work with the children in relation to their behaviours. The family consultant expressed concern if the therapist who was intended to provide an intervention service for the children either had not provided that service or that it had been redirected to becoming part of the dispute and the conflict.
There was also cross examination of the family consultant about the children’s continence issues. The family consultant indicated that she held some concern about the motivation for the father putting the daughter in pull-ups and concerns about the distressing consequences it may have on the daughter.
The family consultant was also cross examined about the sibling relationship with the children’s recently born sister in the mother’s home. The family consultant indicated that this was not something she had considered in preparing her report but agreed that there are benefits for the children in having extended sibling relationships and opined that certainly if the children were to lose those relationships there could be grief associated with that.
The family consultant prepared the Family Report in these proceedings by conducting interviews with the family, observing the children with relevant adults and reviewing the affidavits and other documents such as Notices of Child Abuse and court orders in the proceedings. After preparing the report the family consultant viewed some further maternal filed in the proceedings, including the trial affidavits of the parties and some of the witnesses. Under cross examination she provided additional helpful information particularly in relation to the respective risk factors for the children in each parents’ care.
The family consultant also recommended that if the Court determines the children are not at risk of harm in either parent’s care (which she appears to have extended to not being at an unacceptable risk of harm in either parent’s care) then they should continue to live with the father and spend time with the mother each alternate weekend and half of the school holidays. This is the parenting arrangement promoted by the father and the ICL.
It is clear in making these recommendations the family consultant attached significant weight to the risk of harm potentially posed by each of the parents. Considering her report and evidence as a whole, she also attached weight to each parents’ capacity to provide for the children’s needs.
Although having recommended the arrangement proposed by the ICL and father in her report the family consultant adjusted her position about the reasons underlying this recommendation as a result of matters considered further by her under cross-examination.
In her report the family consultant included some of the following matters about the father and the caregiving in his home. During observation the father demonstrated to the family consultant an ability to engage with the children in a child focused manner but appeared to minimise concerns that had been reportedly raised by professionals regarding the son’s development.
The father reported that concerns had been raised by others in relation to the son’s speech and was aware that this child was previously attending speech therapy but said that the staff at the current day care centre where he then attended five days per week were “not overly” concerned about his speech. The father also reported that the son’s counsellor had suggested that this child may have autism spectrum disorder and that he would pursue a formal assessment of this “probably in the future”. The father’s partner stated that the children were “doing great” that the son’s speech has “picked up amazingly” and that while the son may be “a bit” behind she indicated his speech continues to improve.
There was also some very contradictory evidence in relation to continence issues for each of the children. The father’s partner had reported to the family consultant that the son soils himself “approximately ninety per cent of the time” when Mr F’s name is mentioned but this child was otherwise toilet trained. Similar reports were made in relation to the daughter’s urinary incontinence and there was no dispute that this child was on a number of occasions placed in “pull ups” when she was made available to spend time with her mother many years after having been toilet trained.
It was the father’s evidence that the children’s incontinence issues coincided with time they spent with the mother and that as at November 2017 the daughter was “wetting herself every day and [the son] soiling his pants every day.” The father however conceded under cross examination that both children had had ongoing issues with their continence for many years but asserted that it “gets worse when they see their mother.” The father agreed under cross-examination that the children’s incontinence issues were extremely concerning given their age yet curiously he did not take either child to see a paediatrician regarding this issue. He indicated that it had not been until three months prior to final hearing that he had taken steps to arrange for the children to see a paediatrician in relation to any issue even though they had been living with him for around 18 months by that stage.
The father said in cross examination that he had informed the children’s psychologist of the children’s continence issues and that he and his partner “tried doing other exercises to see if we could manage it without paediatricians.” He further indicated that he at times would trial putting the daughter in pull-ups in what the daughter perceives will be stressful situations for her but that she had not been wearing pull-ups consistently since coming into his care. This he says was based on the advice of a doctor and the psychologist that it may be less embarrassing for her to wear the pull-ups than to experience urinary incontinence.
Several reports dating back to 29 July 2018 prepared by a worker from a service supervising the mother’s time with the children record the daughter asking to go to the toilet during visits. In a report dated 7 October 2018 the supervisor documents that the mother asked the daughter whether she would like to put on underwear she had bought for her to which the child responded “Dad said to leave [the pull-up] on.” It is also recorded that the daughter confirmed that she wore pull-ups to school. The worker subsequently observed that the daughter “appeared to be embarrassed or uncomfortable” about this matter.
The family consultant opined in her report that it was possible the children’s reported soiling behaviours were due to them having been abused or having contact with a perpetrator but that it was also possible that it could be attributed to other factors, including exposure to parental conflict. The family consultant agreed that there could be three explanations for the children’s incontinence issues, namely that the children hadn’t been properly toilet trained, there was a medical problem or a psychological stress-related problem.
I am unable on the evidence before me to determine whether the children or either of them did have difficulties with their continence claimed by the father. The mother says that they were both toilet trained while the father suggests there was significant concern in this regard coinciding with the children spending time with the mother. I am of the view however that a positive finding in relation to this matter is not required as either way the issue was said to have arisen only when the children were living in the father’s care and he failed for at least 18 months to seek paediatric attention for either child even though he had had knowledge of the paediatrician who had been consulted in respect of both children.
It also emerged under cross-examination that despite the father having knowledge of the son’s speech therapy while living with the mother and the mother informing him about home based exercises the child was not engaged in speech therapy from August 2017 to early 2018 while in the care of the father.
Given the concerns that had been raised about the son’s speech development the family consultant also recommended in her report dated 3 April 2018 that this child have a formal assessment in relation to his global development as this would assist the parties in identifying any additional needs for this child and inform appropriate intervention at home and in external settings. She strongly recommended that the father attend upon his general practitioner to seek referral to a paediatrician, speech therapist and other relevant professionals for the purposes of an assessment. The father did not follow any recommendations about these assessments or follow up treatment.
In summary, I am satisfied that each of the children have some specific needs which require therapeutic intervention. This has been provided to a greater extent by the mother when the children were living mainly with her than by the father when the children were in his care.
The family consultant opined that it appeared the children had been questioned about incidents related to the proceedings. She said that the manner of this questioning is unlikely to be of benefit or protective of the children. It could be considered psychologically abusive and may also expose the children to the parental conflict and have a detrimental impact on their ability to build and maintain meaningful relationships with both parents. I accept the family consultant’s evidence in relation to this matter and am satisfied that both parents questioned the children about incidents which each claimed had occurred in the other parent’s care and failed to protect the children from being drawn into the parental dispute.
Another matter of particular significance in relation to the capacity of each of the parents and other relevant people is that the main care giving in the father’s household is undertaken by his partner, a non-biological parent who has the care of two other children of her own. Some concern arises that the father is not actively engaging in the issues for the children from the father’s evidence under cross examination that he had been “too busy” to read all of the contact reports of the mother’s time with the children and to attend the children’s speech therapy appointments.
The final relevant matter with respect to the father’s parenting capacity relates to his use of illicit substances, prescription medications and alcohol. The family consultant expressed an opinion about the impact upon parenting capacity of parents who are misusing substances but had observed that the information provided by both parents regarding the father’s drug use and mental health appeared to be related to historical concerns.
Under cross-examination the family consultant agreed that the father did not inform her of any misuse of prescription medication which was problematic until at least 2014 or his misuse of alcohol which continued until around 2015. Given the father’s unreliable reporting of his substance misuse and the family consultant’s evidence about parenting shortcomings for parents who misuse such substances I have some concerns about the quality of care provided by the father should he be using or return to use of such substances.
The family consultant had expressed a view in relation to many shortcomings in the mother’s capacity to meet the children’s needs in her 2018 report. In general the mother presented during interview and observation to the family consultant as having a limited ability to manage her focus on the children and instead presented as self-focused or focused on her grievances and concerns regarding the father. The family consultant had also observed that both children appeared to have ambivalent relationships with their mother and gained the impression that they were accustomed to independent play with little parental engagement from their mother.
Also as previously noted and discussed at length the family consultant felt that the mother had no insight into the impact of violence perpetrated by her partners upon her children and herself especially in relation to her parenting capacity.
The family consultant agreed that the mother appeared to have been more attentive to arranging for appropriate services to be provided to her children particularly in meeting their medical needs and was more engaged with external agencies which would provide some protection for them. The family consultant remained concerned however about the mother’s ability to take responsibility for her own contributing behaviour in relation to the children’s challenges.
It appears to me that the proposal of the ICL which is supported by the father is based largely upon the family consultant’s original recommendation without taking into account her change of position in the course of the proceedings under cross-examination. In my view it is appropriate to attach greater weight to the family consultant’s oral evidence after she was given further information that emerged in the proceedings.
I accept the family consultant’s opinion relating to each of the parent’s challenges in meeting the children’s needs and as previously stated approach the matter on the basis of weighing each proposal and determining which is least detrimental for the children.
Although the mother’s general protective capacity is poor as she lacks an understanding about the situations and circumstances that may pose a risk to the children the greatest concern in this regard relates to her limited capacity to recognise the harm associated with family violence and protect her children from exposure to it. This matter has been considered at length and for the reasons given in my view the risk posed by the father as a perpetrator of family violence is greater than the risk posed by the mother and this latter risk may be mitigated by orders restraining contact between her partner and the children.
Further, although the mother has significant limitations she is the principal care giver in her household whereas the father has a limited role in actually caring for the children in his household and leaves this to be carried out by his partner. In circumstances where I can have no confidence about the sustained longevity of this relationship I consider this to be a weighty factor in favour of the mother’s proposal.
Further, both the father and his partner have demonstrated a poor ability to engage with medical and treatment providers and on the occasions that they did engage a therapist it seems that this engagement may have been more directed to obtaining evidence for the purposes of the proceedings rather than ensuring the children received an intervention service.
Finally I regard the father’s conduct in retaining the daughter in his care in 2014 and ceasing to make the children available to spend time with their mother in accordance with the orders for many months as weighty matters. As the father did not pursue allegations in these proceedings that were said to found his actions on these occasions real concerns are raised about his capacity to meet the children’s need to have a meaningful relationship with their mother. There remains in my view a risk that the father may interfere with the children’s relationship with their mother or withhold them from her for spurious reasons again in the future.
Although the mother has significant challenges to her caregiving capacity she has been more attentive in obtaining professional help to meet the children’s needs than the father.
Further, although the mother does depend upon some support from the maternal grandmother in daily caregiving activities and the maternal grandmother has had challenges in relation to her own parenting the mother a natural parent is the principal caregiver in her household.
Although it is likely that the children will experience some loss if they move from the father’s household as the mother proposes it is likely that this loss will relate more to the father’s partner than to the father given the partner’s significant involvement in the children’s day to day care.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Although the parents live some distance from one another there are no practical difficulties or significant expense under the proposal of the ICL supported by the father as it does not include mid-week time with the mother. The mother’s proposal that the children’s weekend time with father end at the commencement of school on a Monday brings with it some impracticalities given that the father’s home is around 70 kilometres from the school the children will be attending if living with the mother.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Aboriginal or Torres Strait Islander background and the children’s right to enjoy their culture
Nothing is known of the culture and traditions of the children and their parents though the parents’ lifestyles and backgrounds as discussed at length have been characterised by instability and dysfunction.
Although there is no reference to this matter in any affidavit filed in the proceedings or other evidence relied upon in their respective cases there is a question as to whether the children are aboriginal. When interviewed by the family consultant while both parents indicated that they identified as Anglo/Australian the mother also stated that the father’s grandmother once claimed that their family is of indigenous heritage.
When evaluating the family the family consultant recommended that the question of whether the children are Aboriginal should be clarified. Although the family report was released over 12 months prior to the hearing this matter has not been clarified. In particular there is no evidence to support the contention that the children are Aboriginal or that is related in any way to Aboriginal heritage, identity or culture.
Other relevant matters
Each of the children present with a number of challenges which may be related to the circumstances in which they were raised in each household and which have been brought to the attention of the Department over the years.
The family consultant noted that the project Magellan Report dated 1 September 2017 identified 36 contact reports in relation to the children of which 18 were risks of serious harm reports between 2011 and 2017. The issues notified included inadequate supervision, exposure to family violence, risk of sexual harm and physical assault.
Although the Secretary of the Department has intervened in the proceedings no orders are proposed by the Secretary beyond those of the parties.
Conclusion
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a children has parental responsibility for the children.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[5] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[5] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The presumption of equal shared parental responsibility does not apply in this case as I am more than satisfied that the father has engaged in family violence.
This is also not a case where either party or the Independent Children’s Lawyer proposes that the parents have equal shared parental responsibility for the children. Rather, each parent proposes that the parent with whom the children live have sole parental responsibility.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by each of the parents must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the children.
The family consultant gained the impression that prior to the father retaining the daughter in his care the parties had some capacity to communicate and co-operatively parent but observed that the current parenting relationship is characterised by mistrust and a lack of regard for one another. This raised concerns for the family consultant regarding the parties’ abilities to communicate and co-operate in order to exercise effectively shared parental responsibility. She was however not clearly of the view that it would be advantageous for the children if one parent had sole parental responsibility due to the concerns identified regarding the parenting capacities and the party’s abilities to promote a meaningful relationship with between the children and the other parent and consistently prioritise the children’s needs above their own and above the conflict between them.
I accept the opinion of the family consultant that it may not be advantageous for the children if one parent has sole parental responsibility due to the problems identified. However, given the complete absence as at the time of hearing of any evidence that the parents could co-operate sufficiently to jointly make decisions for the benefit of the children and as each of them and the ICL contends that it would be in the children’s best interest for the parent with whom the children are to live to exercise sole parental responsibility for them, I propose adopting that course.
Determining where the children should live is a finely balanced matter. The children have lived with the father for over two years and his partner appears to provide a reasonable quality of day to day care for them. It is of significance however that this care is being provided by a non-parent when determining a parenting dispute between the children’s natural parents.
As discussed at length there are significant risks of harm in the care of each of the parents. For the reasons given however I consider that the father poses a greater risk of harm with respect to family violence than the mother and the only way to mitigate this risk of harm is to limit the time the children are to spend with the father.
Both parents have shown some limitation in their ability to meet the children’s needs but the mother has engaged the children with professional services more fully than the father and has done so in manner that focuses on their needs rather than providing those services for some other purpose.
While there is some ambivalence in the mother’s relationship with the children having regard to all of the best interests considerations I am of the view that the least detrimental arrangement for these children in the future is that proposed by the mother and supported by the Secretary of the Department.
For the foregoing reasons I make the orders as proposed by the mother with some minor amendments for the reasons given.
I certify that the preceding two hundred and ninety-six (296) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 31 October 2019.
Associate:
Date: 31 October 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness